Free trade agreement with China: legal opinion supports NGO requests
A legal opinion commissioned by a coalition of NGOs strengthens the call for an inclusion of human rights issues in the free trade agreement between Switzerland and China currently being negotiated. The legal opinion voices the apprehension that a strict patent protection could affect the Chinese population’s rights to food and health. The NGO coalition consisting of the Berne Declaration, Alliance Sud, the Society for Threatened Peoples and the Swiss-Tibetan Friendship Society is relieved about the result of the investigation.
The legal opinion was compiled by Christine Kaufmann, head of the Competence Centre for Human Rights at the University of Zurich, together with Jonathan Niedrig. This Zurich competence centre at the same time forms the «Human Rights and Business» cluster of the Swiss Centre of Expertise in Human Rights (SCHR).
Results of the legal opinion: duties for Switzerland
The legal opinion contains an overview of the legal fundamentals, an assessment of some of the human rights risks within the context of a free trade agreement with China, a selection of appropriate possibilities of including human rights criteria into a free trade agreement as well as suggestions on the further course of action. The legal opinion reaches the following conclusions:
- Duty to clarify
There exists a legal obligation for Switzerland to clarify the implications on human rights of a free trade agreement with the People’s Republic of China. - Duty to identify specific sectors which are sensitive to human rights
An assessment of the risks of the effects of the free trade agreement within the People’s Republic of China has to be performed. - Duty to conduct negotiations in a manner sensitive to human rights
Switzerland carries a fundamental responsibility to let the results of these clarifications influence the negotiations with China and to reach an appropriate negotiation outcome.
Critical analysis is essential
This legal opinion has rendered a serious and critical analysis of the human rights approach by the Swiss negotiation delegation inevitable. The Federal Council’s evasive and placating position on the question of coherence between human rights policy and trade policy, as voiced in its answer to the interpellation by FDP parliamentarians of 7 September 2011, will in future not be enough. Since the negotiations with China are conducted with utmost discretion, it will only be possible to establish ex post facto whether this dispute has really taken place and which results it has yielded.
Documentation
- Freihandelsabkommen mit China: Unabhängige Studie stützt NGO-Forderungen
Media release by the Berne Declaration, Alliance Sud, the Society for Threatened Peoples and the Swiss-Tibetan Friendship Society, 28 November 2011 (in German) - Menschenrechtssensible Bereiche im Freihandelsabkommen zwischen der Schweiz und der Volksrepublik China
Prof. Dr. Christine Kaufmann and lic. iur. Jonatan Niedrig, Competence Centre for Human Rights at the University of Zurich (pdf, 21 pages in German) - Executive Summary: Sensitive human rights issues within the free trade agreement between Switzerland and the People’s Republic of China
Prof. Dr. Christine Kaufmann and lic. iur. Jonatan Niedrig (pdf, 2 pages) - Menschenrechtsschutz im Handel mit China. Ein Gutachten stützt die NGO-Forderung nach Auflagen im geplanten Abkommen
Neue Zürcher Zeitung, 29 November 2011 (pdf, 1 page in German) - 11.3487 – Interpellation: Menschenrechtsdialog. Welche Politik verfolgt der Bundesrat?
Text of the interpellation and answer by the Federal Council, 7 September 2011 (in German)
Update: 07.12.2011
